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Thursday, 13 February 2014

Registering an English judgment for enforcement in Scotland

English solicitors are used to being instructed to raise
proceedings against opponents who are based in Scotland, very often by clients
who don't see there's a problem.We
lawyers know that, as legal jurisdictions, Scotland and England are quite
distinct. There's really little reason, though, why our clients need know or
care, at least until they have to consult us.

BackgroundBusinesses in England can and do deal every day with
businesses in Scotland without recognising that, as far as the lawyers are
concerned, they've been dealing with a company in a different country. When
there's a problem and the clients need action raised, they can be surprised to
be told. Even sophisticated clients who have been through the courts in England
many times over may never have seen the inside of a Sheriff Court or consulted
an Advocateat Parliament Hall or litigated in the Court of Session. They may be apprehensive at the prospect. They won't know the law, they won't
know what's involved procedurally and they won't know how much it's all going
to cost. Still, most clients will be happily impressed if you're able to
explain that you have an existing relationship with trusted and experienced
commercial litigators in Scotland and that you can get them moving on things
straight away. That will, of course, generally and clearly be the best thing to
do for the interests of even the most apprehensive client. Issue fees in
Scotland are in fact minimal compared to those faced south of the border (in
effect no more than £100 whatever the level of claim). More importantly,
Scotland is likely to be the location of the assets from which any recovery for
the client will be made and you'll need to involve Scottish agents at some
point. Better sooner rather than later, particularly as there may be only a
short time to take critically important, interim measures to preserve whatever
assets there are in the face of a threat to dissipate them. The whole process
of getting undefended judgment in Scotland is perhaps five to six weeks from
instruction to receipt of the written extract decree and can be made less than
that in cases of demonstrable urgency. Most clients will be pleased if you can
instruct your recommended Scottish agents and, conversely, won't thank you if
they end up making no recovery because action wasn't raised in Scotland quickly
enough.

Still, there may occasionally be circumstances in which you'll
choose to sue a Scottish company in the County or High Court, despite the added
cost and procedure. It's certainly likely to be more convenient for the
lawyers, allowing management and resolution of the dispute to take place on
familiar ground and under familiar rules. In the context of a commercial
dispute, in the absence of a contractual provision prorogating jurisdiction to
the Scottish courts (something you'd want to check), it may well be possible to
raise the action in the English courts. You'd want to make sure you followed
the rules about service outwith the jurisdiction, say, and for obtaining default judgment against a party based in Scotland, but no doubt you'd be able to get judgment. There remains, of course, one
problem. Once you've got it, what use is an English judgment in Scotland?

Strictly, none. The judgments of the courts in one
jurisdiction are not directly enforceable in the other. Finding out how to get
the Scottish courts to recognise an English judgment can be time-consuming if
you've never had to do it before or if you've just forgotten. The client is
unlikely to want to pay you to research the question. A brief and concise guide
to what to do might be useful.

What you need to get from the English courtThe basis for the procedure is section 18 of, and paragraph 2 of Schedule 6 to, the Civil Jurisdiction and Judgments Act 1982 and CPR 74.17.
You need to apply under CPR 74.17 for a certificate of money provision by
filing, at the court where the judgment was given or has been entered:

1. An application, which should be by Form N244, in appropriate terms, stating that the judgment remains unsatisfied and
applying for the issue (by virtue of the relevant provisions of the 1982 Act
and CPR 74.17) of a certificate of judgment to register for enforcement in
Scotland.

4. Once you have the certificate, pass it to your Scottish
solicitors to register.

The registered certificate then authorises exactly the same recovery procedures as would have been available had the judgment been granted by the Scottish courts. What those procedures - "diligence" in the parlance of Scots law - are, and which to use and when, is for another post. We'll be happy to advise on the costs and options if you want to get in touch.